Legal History

Ariadne's Thread is designed to help you work out and defend your
own views on the complicated subject of affirmative action, chiefly
as it applies to race or color in the United States. Some fairly
non-controversial legal history may serve as an introduction.
Even this history, however, will make it clear that what counts
as affirmative action has changed greatly over time and the law
regarding it is still changing.

Affirmative action policies intended to help black Americans began
fairly recently. The policies are derived from several sources:
laws, executive orders, and court decisions. They have developed
over the last 30 years, and have often been controversial. Comment

The Civil Rights Act of 1964

The Civil Rights Act of 1964 contained a section on equal employment
opportunity. That section, called Title VII, made it illegal for
employers with 25 or more employees to "fail or refuse to
hire or to discharge any individual . . . because of such individual's
race, color, religion, sex, or national origin...." Title
VII also stated that none of its provisions should be interpreted
as requiring "preferential treatment" for any individual
or group because of race, color, religion, sex, or national origin.
But it provided for "affirmative action" in some cases
of discrimination. Title VII is sometimes referred to by authors
who argue against affirmative action programs, but the situation
became much more complicated as executive orders were issued and court decisions
were made. CommentSource

Executive Order #11246 and the DOL

In 1965 President Johnson issued Executive Order #11246. The order
required each federal department to develop a "positive program
of equal employment opportunity" regardless of race or color.
It also required federal contractors to take "affirmative
action" to ensure non-discrimination in recruitment, hiring,
promotion,and rates of pay.

The Department of Labor (DOL) issued rules and regulations to
implement Johnson's order. The rules required contractors to undertake
a "utilization analysis" to determine whether qualified
women and minorities were under-represented among the contractor's
employees. Contractors were to draw up numerical "goals"
and "timetables" to remedy under-representation. CommentSource

The application of the DOL rules and regulations provoked controversy.
Did the new rules merely require contractors to make good faith
efforts to hire blacks and women? Or did they, in effect, establish
quotas for hiring? Did the new rules require non-discrimination?
Or did they, in effect, discriminate against white job applicants?
Had affirmative action become "preferential treatment"
for blacks and "reverse discrimination" for whites?
These were some of the questions that were debated. If the new
rules did allow, or require, strong preferential treatment, they
raised an important moral issue: Was there a legal or a moral
justification for giving preference to blacks? In a nutshell,
that question is the subject of Ariadne's thread on affirmative
action. CommentSource

Some private companies and unions responded by formulating affirmative
action plans. In some cases these plans were simply designed to
give blacks and whites an equal chance at jobs and promotions.
For example, jobs were publicized in black newspapers. More recruitment
was done at black schools. Training programs were created. Employers
labeled themselves "equal opportunity employers" in
their job advertisements.

In other cases the plans were more aggressive. This occurred especially
when courts found a history of discrimination or marked segregation.
For example, a training program might be required to have a certain
percentage of black enrollment. A court might require an employer to
hire one black for every white until a certain goal was reached.
These plans were more controversial.

Supreme Court Decisions

A series of Supreme Court decisions in the 1970s helped define
what counted as discrimination and what could or could not be
done as affirmative action.

In Griggs v. Duke Power (1971) the Court determined that
tests used by employers for hiring must be closely related to
job performance if they have a "disparate impact" on
minorities. CommentSource

In United Steelworkers of America v. Weber (1979) the Court
upheld a voluntarily adopted plan to reserve 50% of the slots
in a training program for blacks. The plan was an attempt to increase
the number of blacks in the nearly all white skilled labor force
at Kaiser Aluminum.

Many universities also adopted affirmative action programs in
the 1970s. These programs were aimed at increasing black student enrollment
and the number of black faculty. The constitutionality of some
programs came into question in the case of Allan Bakke.

Bakke applied to, and was rejected by, the University of California
medical school at Davis. Because the school had set aside 16 places
for disadvantaged minority applicants, he argued that the school
had violated his right to equal protection of the laws. In 1978
the Court declared the school's program unconstitutional, but
it also allowed that "race-conscious" policies to benefit
minorities were permissible if race was not the sole factor considered.
Comment

The Reagan Administration

Ronald Reagan became president in 1981. He and his supporters
were generally opposed to the stronger forms of affirmative action.

Some of those in the Reagan administration wanted the president
to rescind Johnson's executive order #11246. That never happened.
However, the administration did initially argue for a particular
understanding of when courts should order or allow relief in discrimination
cases. This understanding is sometimes called "victim specific."
It allows that only the specific victims of proven discrimination
by a particular employer must be given relief or compensation
by that employer. The Supreme Court later rejected this view.

After Reagan

Although the victim specific interpretation was rejected, the
administration still sought to change the results of the Griggs
case and others. Success occurred just after Reagan left office.
In City of Richmond v. J. A. Croson Co. (1989) the Court
struck down a policy that set aside 30% of city contracts for
minority-owned contractors.

In Wards Cove Packing Co. v. Atonio (1989) the Court decided
that when there is a statistical imbalance in an employer's labor
force, the employer does not have to prove that its hiring procedures
are justified by "business necessity" as in Griggs.
The burden of proving that the hiring procedures are not reasonably
related to legitimate business concerns falls on the party bringing
the suit. Comment

After the Croson and Wards Cove decisions, legislation was introduced
into congress to reverse some of the effects of those decisions
and write the results of the Griggs case into law. A new law required
the complaining party to show that a particular employment practice
had a "disparate impact" on blacks or others protected
by the 1964 law. It then required the employer to prove that the
practice was justified by "business necessity." The
law also banned a practice sometimes called "race-norming"
by which test scores are altered on the basis of race, color,
religion, sex, or national origin.

The Croson decision did not end "set asides" connected
with federal contracts. A 1987 law required that 10% of federal
money for certain highway projects go to businesses owned by "disadvantaged
individuals." In one such case, a contract was awarded to
an Hispanic owned company. Another contractor, Adarand Constructors
Inc., had entered a lower bid and lost. Adarand argued that the
government's policy violated the equal protection guaranteed by
the Fifth Amendment. In 1995, in Adarand Constructors v. Pena,
the Supreme Court decided that only a "compelling interest"
could justify race-based action by the federal government. This
increased the level of scrutiny for all federal affirmative action.
Source

Ongoing Debates

After much legislation and many Supreme Court decisions, affirmative
action continues to be controversial. The law is complex and somewhat
uncertain. Americans continue to debate questions like these:

Since black Americans were unjustly treated for centuries
isn't there some sort of compensation to which they are entitled?
Should it take the form of affirmative action?

Is affirmative action just another name for discrimination
against white people? Is there any difference in principle between
affirmative action and the more traditional discrimination against
blacks?

Are the goals embodied in affirmative action plans really
quotas?

Does affirmative action aim at equal opportunity and good
faith efforts by employers or does it aim only at statistical
results?

When, if ever, do statistical disparities imply racial discrimination;
and what role should such statistical disparities have in court
cases?

Do affirmative action programs help or hurt black Americans?

Do affirmative action programs increase or decrease racial
animosity, and conflict? Do they strengthen or weaken stereotypes?

These questions have been debated for over 20 years, with no sign
of agreement. It appears that the controversy over strong affirmative
action is unlikely to disappear or to be resolved. The conflict
involves the distribution of important goods, including well paying
jobs and the best education. There are interests, political power,
and moral conviction on all sides. Furthermore, all sides can
appeal to common sense moral notions and legal precedent. It is
not surprising that some writers have described the debate as
deadlocked.